113 Wash. App. 822 | Wash. Ct. App. | 2002
— When he was sentenced to prison in 1988, Steven Forbis was eligible to earn early release time, good conduct time, and dayroom privileges without having to
When DOC applied Policy 320.400 to Forbis, it increased the punishment for his offense by imposing retrospective punitive sanctions. The regulation was adopted after his conviction and requires him to satisfy additional conditions to receive the same sentence for that offense. As applied to him, it is therefore an ex post facto law. We grant Forbis’s personal restraint petition and prohibit DOC from applying DOC Policy 320.400 to him.
FACTS
On May 4, 1988, Steven Forbis was sentenced to a minimum term of 26 years and 8 months in the custody of the Department of Corrections for his first degree murder conviction. He is presently serving his sentence at the Washington State Penitentiary and was incarcerated there at the time of the prison disciplinary proceedings he now challenges.
In 1988, Forbis could earn early release time and dayroom and other privileges without participating in stress/anger management classes. The trial court did not impose these classes in the judgment and sentence, and when Forbis entered prison and was told how to avoid infractions and earn early release credits and other privileges, the requirement did not exist.
Beginning in 2000, DOC applied a new policy to Forbis requiring him to participate in stress/anger management classes to avoid loss of early release time and dayroom
On May 30, 2000, Mary Moss, Forbis’s classification counselor, enrolled him in stress/anger management classes after an assessment indicated he needed them. He refused to participate because they were not ordered in his judgment and sentence. On June 20, 2000, Forbis was sanctioned for this refusal by having five days of earned early release time credits removed. His administrative appeals of this sanction were denied.
In March 2001, Forbis was again enrolled in stress/anger management classes beginning on March 27 and April 2. When he refused to participate, DOC imposed a sanction of loss of 10 days good time, early release time for March 2001, and 30 days of dayroom privileges for his failure to participate in the March 27 class. It then imposed an additional sanction of loss of 30 days good time, early release time for April 2001, and 90 days of dayroom privileges for his failure to participate in the April class. Forbis’s appeals of these sanctions were also denied.
Acting pro se, Forbis filed a personal restraint petition, asserting the application of DOC Policy 320.400 and the resulting sanctions violated the constitutional protection against ex post facto laws. On October 10, 2001, this court ruled that Forbis had raised a nonfrivolous issue and appointed counsel to brief the issue.
DISCUSSION
DOC Policy 320.400 provides in part that “[i]nmates who refuse to participate in programming to address identified
In order to obtain relief from a personal restraint petition, Forbis bears the burden of proving that he is presently restrained due to a constitutional error
A statute is presumed constitutional, and the party challenging it has the burden of proving otherwise beyond a reasonable doubt.
Increase in Punishment
Forbis maintains that when DOC applied Policy 320.400 and former RCW 9.94A.132 to him, it increased his punishment because it reduced his ability to earn early release credits. He argues that Weaver v. Graham
In Weaver, the United States Supreme Court held that the ex post facto clause prohibited the State from applying a statutory change reducing the opportunity to earn gain-time (early release credits) to a prisoner whose crime occurred before the change was enacted. The petitioner pleaded guilty to second degree murder in 1976 and was sentenced to 15 years. At that time, prisoners who did not commit prison infractions and satisfactorily performed their assigned tasks were eligible to earn reductions in their sentence at the rate of 5 days a month for the first and second years, 10 days a month for the third and fourth years, and 15 days a month thereafter. In 1978, the Florida legislature enacted a new formula that allowed inmates to earn only three, six, and nine days respectively a month.
In reaching its conclusion, the Supreme Court rejected the argument that the gain-time provision was not part of the original sentence and therefore not part of the punishment imposed when the petitioner was sentenced.
The Washington Supreme Court followed Weaver in In re Personal Restraint of Smith.
Nor do we find that the amended language may be applied retroactively to petitioners. Retroactive application of a law violates the ex post fact clause if it increases the quantum of punishment for an offense after the offense was committed. A change in the law that limits eligibility for reduced imprisonment violates the ex post facto clause when applied to individuals whose crimes were committed before the law’s enactment.[17 ]
DOC attempts to distinguish Weaver and Smith, asserting they involve changes to the structure of an offender’s prison sentence after the crime was committed whereas Forbis’s earned early release was already set at one-third of his sentence. This is a distinction without a difference. As in those cases, the amount of time Forbis has to spend in prison is increased by the decision to require compliance with DOC Policy 320.400. It is the effect of the retrospective law, not the form, which is at issue.
DOC also claims Forbis has not cited any cases that equate a loss of earned early release time due to prison disciplinary sanctions with an ex post facto violation. Again, DOC misses the point. It mischaracterizes the issue by arguing that Forbis was sanctioned for active misbehavior. He was not. But for DOC’s decision to apply the policy to Forbis, he would not have committed a prison infraction at all. As discussed below, there is a significant difference between reducing early release time after an inmate is sentenced and increasing sanctions for future infractions the inmate commits while incarcerated.
In Stansbury v. Hannigan,
The result in the petitioner’s case was to extend the time he would have to serve before being eligible for parole. Thus, the regulation as applied to the petitioner was retrospective in that it applied to events occurring before its enactment and it disadvantaged the offender affected by it.[21 ]
Accordingly, the Kansas Supreme Court held that application of the amendments to the petitioner violated the prohibition against ex post facto laws.
DOC relies on In re Ramirez
DOC also cites Hallmark v. Johnson
In Ward, our Supreme Court held that the Community Protection Act of 1990, which required people who were previously convicted of sex offenses to register as sex offenders, does not violate the ex post facto clause because the registration requirement was regulatory and not punitive.
Because the time Forbis must serve on his criminal sentence is at issue, it plainly involves punishment. The changes resulting from the enactment and application of DOC Policy 320.400 increase the quantum of Forbis’s punishment because they reduce his ability to earn early release credits, extending the time he has to serve before being eligible for release. Accordingly, the first element of the ex post facto test is satisfied.
Substantive or Procedural
DOC maintains that its case management policy is procedural rather than substantive because it does nothing more than coordinate offender management and does not criminalize past or present acts, punish, or interfere with an inmate’s substantive rights. A law does not violate the ex post facto clause if it is merely procedural.
Finally, Forbis must establish that the change in the law was enacted and applied to him after he was convicted. DOC contends that (1) it already had the general authority to require inmates to participate in stress/anger management classes before Forbis’s incarceration and (2) former RCW 9.94A.132, the statute specifically authorizing stress/anger management classes, and DOC Policy 320.400 are not retrospective on their face or as applied to Forbis. While DOC did have authority to require inmates to participate in other programs before Forbis’s conviction, it did not have authority to require stress/anger management classes until 1995, seven years after Forbis was sentenced, and the changes in the law are retrospective as applied to him.
DOC first argues that it has had authority under chapter 72.09 RCW to require inmates to participate in stress/anger management classes since 1981. Forbis counters that the statute on which DOC relies did not authorize it to require participation in stress/anger management classes. He contends that because former RCW 9.94A.132 specifically authorizes DOC to impose the classes, that statute would be meaningless if DOC already had the authority to do so. We agree.
In 1981, the legislature determined that “[s]ince virtually all offenders return to the community, it is wise for the state and the communities to make an investment in effective rehabilitation programs for offenders and the wise use of resources.”
The department shall adopt a system providing incentives for good conduct and disincentives for poor conduct. The system*835 may include increases or decreases in the degree of liberty granted the inmate within the programs operated by the department and recommended increases or decreases in the number of earned early release days that an inmate can earn for good conduct and good performance. Earned early release days shall be recommended by the department as a form of tangible reward for accomplishment. The system shall be fair, measurable, and understandable to offenders, staff, and the public. At least once in each twelve-month period, the department shall inform the offender in writing as to his or her conduct and performance. This written evaluation shall include reasons for awarding or not awarding recommended earned early release days for good conduct and good performance. The term “good performance” as used in this section means successfully performing a work, work training, or educational task to levels of expectation as specified in writing by the department. The term “good conduct” as used in this section refers to compliance with department rules.[35 ]
In 1995, the legislature amended RCW 72.09.130 as follows: “An inmate is not eligible to receive earned early release days during any time in which he or she refuses to participate in an available education or work program into which he or she has been placed under section 5 of this act.”
DOC also relies on former RCW 9.94A.132, adopted in 1994 in part to “[p]revent acts of violence by encouraging change in social norms and individual behaviors that have been shown to increase the risk of violence”
We must assume the legislature intended to accomplish something when it enacted specific legislation addressing stress/anger management
DOC next asserts that DOC Policy 320.400 and former RCW 9.94A.132 are not retrospective as applied to Forbis because the classes were imposed based on his conduct while incarcerated. But this assertion is circular. Were it not for the adoption of the statutory amendment and the amended rules, Forbis’s behavior would not be a basis for imposing sanctions. DOC’s argument has been rejected by numerous courts. An example is Greenfield v. Scafati.
In United States v. Paskow,
DOC cites Ramirez in support of its position that increases in sanctions for misconduct while incarcerated are not retrospective even when applied to inmates whose underlying offense occurred before the increase. But Ramirez is not on point. There, the increase in punishment was for affirmative acts of misconduct that occurred while the inmate was incarcerated, not a change in the programs in which inmates were required to participate to earn early release credits. In distinguishing Ramirez from Weaver, the California Supreme Court stated:
*838 There is a critical difference between a diminution of the ordinary rewards for satisfactory performance of a prison sentence — the issue in Weaver — and an increase in sanctions for future misbehavior in prison — which is at issue here. Here, petitioner’s opportunity to earn good behavior and participation credits is unchanged. All that has changed are the sanctions for prison misconduct.[46 ]
Ramirez demonstrates the difference between the prospective rule change challenged there and the issue here. Forbis’s opportunity to earn early release credits has changed because he now has to satisfy an extra condition to earn the same credits, while Ramirez was sanctioned for active misconduct. Forbis does not argue that he is immune from sanctions for affirmative misconduct while incarcerated. Rather, he asserts that he should continue to have the ability to earn early release credits without participating in the classes and being sanctioned for refusing to do so. We agree and therefore conclude that Forbis satisfied the retrospective prong of the ex post facto test.
We therefore grant Forbis’s personal restraint petition and prohibit DOC from applying DOC Policy 320.400 and former RCW 9.94A.132 to him, reverse the sanctions imposed for his refusal to participate in the classes, and direct DOC to reinstate Forbis’s earned early release time.
Kennedy and Appelwick, JJ., concur.
Reconsideration denied November 15, 2002.
The statute was recodified at RCW 9.94A.580 by the Laws of 2001, ch. 10, § 6.
Former RCW 9.94A.132 (1994) provides:
The department is authorized to determine whether any person subject to the confines of a correctional facility would substantially benefit from successful participation in: (1) Literacy training, (2) employment skills training, or (3) educational efforts to identify and control sources of anger and, upon a determination that the person would, may require such successful participation as a condition for eligibility to obtain early release from the confines of a correctional facility.
RAP 16.4(c).
In re Pers. Restraint of Hews, 99 Wn.2d 80, 89, 660 P.2d 263 (1983).
In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).
State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994) (citing Diversified Inv. P’ship v. Dep’t of Soc. & Health Servs., 113 Wn.2d 19, 23, 775 P.2d 947 (1989)).
“No State shall.. . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.” U.S. Const. art. I, § 10, cl. 1.
“No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed.” Wash. Const. art. I, § 23.
Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981); State v. Schmidt, 143 Wn.2d 658, 672-73, 23 P.3d 462 (2001).
Weaver, 450 U.S. at 29; Schmidt, 143 Wn.2d at 673.
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995).
450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
Id. at 32.
Id. at 35.
Lynce v. Mathis, 519 U.S. 433, 445, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997) (quoting Weaver, 450 U.S. at 32).
139 Wn.2d 199, 986 P.2d 131 (1999).
Smith, 139 Wn.2d at 207-08 (citing Weaver, 450 U.S. at 31-36) (emphasis added) (citations omitted).
See Weaver, 450 U.S. at 31.
See In re Ramirez, 39 Cal. 3d 931, 705 P.2d 897, 901, 218 Cal. Rptr. 324 (1985), cert. denied, 476 U.S. 1152 (1986).
265 Kan. 404, 960 P.2d 227, cert. denied, 525 U.S. 1060 (1998).
Stansbury, 960 P.2d at 235.
39 Cal. 3d 931, 705 P.2d 897, 218 Cal. Rptr. 324 (1985), cert. denied, 476 U.S. 1152 (1986).
Ramirez, 705 P.2d at 900.
The California Supreme Court ultimately concluded that the amendments were not retrospective because they applied only to events occurring after their enactment and the petitioner’s misconduct was unconnected to his original crime.
118 F.3d 1073 (5th Cir.), cert. denied sub nom. Monroe v. Johnson, 522 U.S. 1003 (1997).
123 Wn.2d 488, 869 P.2d 1062 (1994).
Hallmark, 118 F.3d at 1079.
Ward, 123 Wn.2d at 498-99.
Collins v. Youngblood, 497 U.S. 37, 44-46, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); State v. Schmidt, 100 Wn. App. 297, 301-02,996 P.2d 1119 (2000), aff'd, 143 Wn.2d 658 (2001).
Collins, at 44-46.
Id. at 46.
DOC does not dispute that former RCW 9.94A.132, the statute on which DOC Policy 320.400 relies, is substantive.
Laws of 1981, ch. 136, § 2(5), codified at former RCW 72.09.010(5). Recodified at RCW 72.09.010(6) by the Laws of 1995, 1st Sp. Sess., ch. 19, § 2.
Id. at § 17, codified at RCW 72.09.130.
id.
Laws of 1995, 1st Sp. Sess., ch. 19, § 6, codified at RCW 72.09.130.
RCW 72.09.460(2).
Laws of 1994 1st Sp. Sess., ch. 7, § 101.
id.
State v. Keller, 143 Wn.2d 267, 278, 19 P.3d 1030 (2001), (quoting In re Pers. Restraint of Sietz, 124 Wn.2d 645, 651, 880 P.2d 34 (1994)), cert. denied, 534 U.S. 1130 (2002).
City of Seattle v. Dep’t of Labor & Indus., 136 Wn.2d 693, 698, 965 P.2d 619 (1998).
277 F. Supp. 644 (D. Mass. 1967), aff’d, 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250 (1968).
Greenfield, 277 F. Supp. at 645-46.
Id. at 646.
11 F.3d 873, 878 (9th Cir. 1993).
Ramirez, 705 P.2d at 901.
